U.S. Immigration Law and the Traditional Nuclear Conception of Family: Toward a Functional Definition of Family that Protects Children's Fundamental Human Rights

Abstract

In this Article, the author exposes how Congress, by failing to protect functional families in the context of immigration law, has failed to follow human rights law in a way that is meaningful to children and that honors its own highly valued principles of family preservation. Although the paramount purpose of U.S. immigration law is not, admittedly, to protect the integrity of family, Congress does explicitly aim to do so in certain circumstances. But even where Congress aims to further family unity, it fails desperately because U.S. immigration law reflects a legal construction that is grounded in the traditional conception of a nuclear family and excludes what the author calls “functional” families: formations which may not satisfy this narrow conception, but satisfy the caretaking needs of children. By exploring current statutes and recent cases in the areas of family-based immigration, cancellation of removal based on family, and the Immigration and Nationality Act’s refugee provisions, the author illustrates that U.S. immigration law fails to recognize functional families and thereby ignores a child’s right to family as provided for by international law. The author also engages in a comprehensive exploration of the Convention on the Rights of the Child and its interpretation, with an eye towards the historical evolution of the definition of family in relevant international instruments, while comprehensively exploring the extension of rights and protections to functional families under international human rights instruments in Europe and the Americas.

Keywords: human rights, immigration, children's rights, family, convention, international, functional family